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Nov. 10 — The
Department of Justice plans to seek U.S. Supreme Court review of a
Nov. 9 decision from the U.S. Court of Appeals for the Fifth
Circuit that upheld a hold on the two deferred action programs that
are among the central elements of President Barack Obama's
executive action on immigration.

The 2-1 Fifth Circuit majority—made up of two of the
three judges who denied the administration's earlier request to
stay a federal judge's hold on the programs—agreed with Texas and
the 25 other states that brought the lawsuit that the cost of
providing driver's licenses to program beneficiaries confers
standing to sue.

It also found that the programs aren't merely an
exercise of prosecutorial discretion, but rather a grant of lawful
presence and benefits. In that regard, the court said, the programs
at the very least should have been subject to notice-and-comment
rulemaking, and likely violate the Immigration and Nationality
Act.

Dissenting, Judge Carolyn Dineen King said the
deferred action programs are discretionary acts related to the
administration's enforcement priorities, and shouldn't be
second-guessed by the courts. Any benefits that attach to a grant
of deferred action derive from separate laws and regulations that
the states didn't challenge, she said.

To suggest that such benefits make deferred action
justiciable “sets a dangerous precedent,” she said, because that
means “any non-enforcement decision that triggers a collateral
benefit somewhere within the background regulatory and statutory
scheme is subject to review by the judiciary.”

“This is logic to which I cannot subscribe,” King
wrote.

Administration Appealing to
Supreme Court

The administration Nov. 10 announced its intent to
take the case to the Supreme Court.

“The Department of Justice remains committed to
taking steps that will resolve the immigration litigation as
quickly as possible in order to allow [the Department of Homeland
Security] to bring greater accountability to our immigration system
by prioritizing the removal of the worst offenders, not people who
have long ties to the United States and who are raising American
children,” DOJ spokesman Patrick Rodenbush said in a statement.
“The Department disagrees with the Fifth Circuit's adverse ruling
and intends to seek further review from the Supreme Court of the
United States.”

The American Immigration Council Nov. 9 called the
Fifth Circuit's decision “disappointing but unsurprising,” saying
the court's ruling that the states have standing to sue “sets a
dangerous precedent.”

In a Nov. 9 statement, however, House Judiciary
Committee Chairman Bob Goodlatte (R-Va.) called the decision a
“victory for the Constitution and the American people.”

“President Obama's decision to ignore the limits
placed on his power and act unilaterally to rewrite our nation's
immigration laws is an affront to the Constitution,” Goodlatte
said.

Senate Judiciary Committee Chairman Charles Grassley
(R-Iowa) Nov. 10 added that the decision continues to prevent the
president's “unlawful maneuvering to implement his own policies,
without regard for Congress, the law, or American workers.”

Rep. Linda Sánchez (D-Calif.), who chairs the
Congressional Hispanic Caucus, Nov. 10 said the Fifth Circuit “is
on the wrong side of history.” Still, she said, the decision
provides an opportunity for newly elected House Speaker Paul Ryan
(R-Wis.) to take the lead on an immigration system overhaul.

“We urge the Republican Speaker to allow a vote on
comprehensive immigration reform, and to deal with an issue that is
not going away,” Sánchez said.

Upholds February Injunction

The Fifth Circuit's decision leaves in place a
February injunction from Judge Andrew S. Hanen of the U.S. District
Court for the Southern District of Texas preventing implementation
of the deferred action for parents of Americans and lawful
permanent residents (DAPA) program and expanded version of the
deferred action for childhood arrivals (DACA) program (Texas v. United States, S.D. Tex., No.
1:14-cv-00254, preliminary injunction
issued 2/16/15) (31 DLR AA-1, 2/17/15). The original DACA
program, launched in 2012, wasn't challenged in the lawsuit and
remains in place.

At the same time, it presents an opportunity for the
Supreme Court to weigh in on the case. Over the past couple of
weeks, some had suggested that the court deliberately took several
months to issue a decision following oral arguments in July (132
DLR A-3, 7/10/15) in order to prevent Supreme Court review prior to
the end of Obama's presidency.

Doris Meissner, director of the Migration Policy
Institute's U.S. Immigration Policy Program, Oct. 28 accused the
Fifth Circuit of “slow-walking the decision” (208 DLR A-8,
10/28/15). And U.S. Citizenship and Immigration Services Director
León Rodríguez Nov. 5 pointed out that the court took more than
three months to reach a decision, despite issuing a decision
“promptly” after oral arguments on the request to stay the
injunction (215 DLR A-6, 11/6/15).

Cornell University Law School Adjunct Professor
Stephen Yale-Loehr told Bloomberg BNA Nov. 10 that the Fifth
Circuit's decision to tackle the substantive issues—rather than
just whether notice-and-comment rulemaking was warranted—makes it
more likely that the Supreme Court will take up the case.

“Because they went beyond the district court and
ruled on the statutory issue of whether the president has this
authority, I think it is more likely that the Supreme Court will
want to resolve this issue,” according to Yale-Loehr, who also is
of counsel to Miller Mayer in Ithaca, N.Y.

Yale-Loehr pointed to a paragraph in the majority
decision by Judge Jerry E. Smith expressing the court's view on the
legality of DAPA. “Even with ‘special deference' to the Secretary,”
Smith wrote, referring to the head of the DHS, “the INA flatly does
not permit the reclassification of millions of illegal aliens as
lawfully present and thereby make them newly eligible for a host of
federal and state benefits, including work authorization.”

Yale-Loehr said, however, that even if the Supreme
Court accepts and decides the case by the end of its current term
in June 2016, it is “not likely to end this litigation.”

The decision pertains only to the propriety of a
preliminary injunction, and a trial still needs to be held on the
merits, he told Bloomberg BNA. In addition, there are other
arguments that the Fifth Circuit didn't address, such as the
states' constitutional claims, he said.

Driver's License Costs Confer
Standing

Writing for the majority, Judge Smith first
determined that the state of Texas, the lead plaintiff, has
standing to sue because of the cost it would face from providing
driver's licenses to about 500,000 DAPA beneficiaries. “As we will
show, DAPA would have a major effect on the states' fiscs, causing
millions of dollars of losses in Texas alone, and at least in
Texas, the causal chain is especially direct: DAPA would enable
beneficiaries to apply for driver's licenses, and many would do so,
resulting in Texas's injury.”

The court refused to consider the administration's
argument that those costs would be offset by other benefits from
the deferred action programs. Only those offsetting benefits that
are of the same type and arise from the same transaction as the
costs can be considered in determining whether a plaintiff has an
injury for standing purposes, it said.

The states' claims also fall within the “zone of
interests” protected by the INA, the court said. “Congress has
explicitly allowed states to deny public benefits to illegal
aliens,” Smith wrote. “Relying on that guarantee, Texas seeks to
participate in notice and comment before the Secretary changes the
immigration classification of millions of illegal aliens in a way
that forces the state to the Hobson's choice of spending millions
of dollars to subsidize driver's licenses or changing its
statutes.”

The majority rejected the administration's argument
that the case isn't justiciable because DAPA and DACA are exercises
of prosecutorial discretion. Deferred action, Smith wrote, “is much
more than nonenforcement: It would affirmatively confer ‘lawful
presence' and associated benefits on a class of unlawfully present
aliens.”

Relying on administration of DACA, the majority also
found that DAPA isn't discretionary in practice.

Work Authorization Grant Too
Broad

As for the administration's argument that DACA and
DAPA don't confer work authorization—it comes from prior
regulations at 8 C.F.R. § 274a.12(c)(14)—the court said the
administration's “limitless reading of that subsection” is “beyond
the scope of what the INA can reasonably be interpreted to
authorize.”

The court said the administration's interpretation
of the statute isn't entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, 467 U.S. 837 (1984). Congress has directly
addressed the precise issue here by specifically carving out
limited circumstances under which undocumented immigrants can
lawfully reside in the U.S. and receive benefits, it said. The INA
also contains an “intricate process for illegal aliens to derive a
lawful immigration classification from their children's immigration
status,” Smith wrote.

Furthermore, the INA “specifies classes of aliens
eligible and ineligible for work authorization, including those
‘eligible for work authorization and deferred action'—with no
mention of the class of persons whom DAPA would make eligible for
work authorization,” he said. “DAPA would dramatically increase the
number of aliens eligible for work authorization, thereby
undermining Congress's stated goal of closely guarding access to
work authorization and preserving jobs for those lawfully in the
country.”

Finally, the majority rejected the administration's
request for an injunction limited only to those states that brought
the lawsuit. Immigration law should be applied uniformly across the
country, and a limited injunction likely would be ineffective
because DAPA beneficiaries could move among the states, it
said.

Judge Jennifer Walker Elrod joined the majority
opinion.

Dissent: ‘Serious Misgivings'
About Standing

In dissent, Judge King took issue with the
majority's decision that the states have standing. “I have serious
misgivings about any theory of standing that appears to allow
limitless state intrusion into exclusively federal
matters—effectively enabling the states, through the courts, to
second-guess federal policy decisions—especially when, as here,
those decisions involve prosecutorial discretion.”

King criticized the district court and the majority
for ignoring the “clear language” of the DAPA memorandum, which
expressly states that DHS officers should exercise discretion in
deciding whether or not to approve applicants for the program. In
addition, she said the majority decided, without any evidence, that
DAPA lacks discretion in practice.

DAPA hasn't been implemented, so there is no way to
tell how it would operate, King said. Rather, she said, the
district court looked to DACA, where there is at least conflicting
evidence as to the amount of discretion it allows.

Finally, King criticized the majority for addressing
the states' substantive claim that DAPA and expanded DACA are
contrary to the INA, when the district court didn't do so. “It is
hard to see how DAPA is unreasonable on the record before us,” she
wrote. “DAPA does not negate or conflict with any provision of the
INA.”

“Indeed, if DAPA were unreasonable under the INA,
then it follows that ad hoc grants of
deferred action are unreasonable as well—something the majority
declines to reach,” King wrote.

Benjamin Mizer of the Justice Department argued for
the administration. Texas Solicitor General Scott Keller argued for
the states.

To contact the reporter on this story: Laura D.
Francis in Washington at lfrancis@bna.com

To contact the editor responsible for this story:
Susan J. McGolrick at smcgolrick@bna.com

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